September 29, 2005

Judy Miller Walks, Will Talk

WASHINGTON, Sept. 29 - Judith Miller, the New York Times reporter who
has been jailed since July 6 for refusing to testify in the C.I.A. leak
case, was released from a Virginia detention center this afternoon
after she and her lawyers reached an agreement with a federal
prosecutor to testify before a grand jury investigating the matter, the
paper's publisher and executive editor said.

Ms. Miller was freed after spending more than 12 weeks in jail,
during which she refused to cooperate with the criminal inquiry. Her
decision to testify came after she obtained what she described as a
waiver offered "voluntarily and personally" by a source who said she
was no longer bound by any pledge of confidentiality she had made to
him. She said the source had made clear that he genuinely wanted her to
testify.

That source was I. Lewis Libby, Vice President Dick Cheney's chief of
staff, according to people who have been officially briefed on the
case. Ms. Miller met with Mr. Libby on July 8, 2003, and talked with
him by telephone later that week. Discussions between government
officials and journalists that week have been a central focus of the
investigation.

OK, Lewis Libby had been everybody's pick for months, so there is no surprise there. But who knew the Times could execute so lovely a pirouette?

The Times' publisher, Arthur M. Sulzberger Jr., said in a statement
that the newspaper supported Ms. Miller's decision to testify, just as
it backed her earlier refusal to cooperate. "Judy has been unwavering
in her commitment to protect the confidentiality of her source," Mr.
Sulzberger said. "We are very pleased that she has finally received a
direct and uncoerced waiver, both by phone and in writing, releasing
her from any claim of confidentiality and enabling her to testify."

Why did it take so long for Ms. Miller to receive this waiver? The Times explains the process to us:

Her willingness to testify was based in part on personal assurances
given by Mr. Libby earlier this month that he had no objection to her
discussing their conversations with the grand jury, according to those
officials briefed on the case.

...The agreement that led to Ms. Miller's release followed intense
negotiations between Ms. Miller; her lawyer, Robert Bennett; Mr.
Libby's lawyer, Joseph Tate; and Mr. Fitzgerald. The talks began with a
telephone call from Mr. Bennett to Mr. Tate in late August. Ms. Miller
spoke with Mr. Libby by telephone earlier this month as their lawyers
listened, according to people briefed on the matter. It was then that
Mr. Libby told Ms. Miller that she had his personal and voluntary
waiver.

But the discussions were at times strained, with Mr. Libby and
Mr. Tate asserting that they communicated their voluntary waiver to Ms.
Miller's lawyers more than year ago, according to those briefed on the
case. Mr. Libby wrote to Ms. Miller in mid-September, saying that he
believed her lawyers understood that his waiver was voluntary.

Others involved in the case have said that Ms. Miller did not
understand that the waiver had been freely given and did not accept it
until she had heard from him directly.

Let me claim an "I told you so" point here - I had argued
(point 3) that blaming Libby for the inability to work out a waiver
deal may have been a bit unfair - negotiating these waivers can't be
easy, and the specter of a witness conspiracy charge hangs over them.

[And why did Miller's attorney wait until late August to call? Why not when she was jailed in July, or anytime after she was found in contempt last fall? Was she running out the clock (see below)? I Boldly Predict that our friends on the left will note eagerly that John Bolton visitedMs. Miller sometime before mid-August. Hey, maybe I have been ignoring the wrong theory, recently moved forward by Arianna herself.]

Now, how broad will Ms. Miller's testimony be?

In written statements today, Ms. Miller and executives of The New York
Times did not identify the source who had urged Ms. Miller to testify.
Bill Keller, the executive editor of The New York Times, said that Mr.
Fitzgerald had assured Ms. Miller's lawyer that "he intended to limit
his grand jury interrogation so that it would not implicate other
sources of hers."

Mr. Keller said that Mr. Fitzgerald had cleared the way to an
agreement by assuring Ms. Miller and her source that he would not
regard a conversation between the two about a possible waiver as an
obstruction of justice.

This may tie in to my guess that perhaps Ms. Miller is attempting to run out the clock on Fitzgerald's grand jury. It is not news that under DoJ guidelines, Ms. Miller's subpoena was quite narrowly directed towards her conversations with one specified official. And since Fitzgerald's grand jury has a month to run, running out the clock at this point should be easy - for example, Ms. Miller can (*HYPOTHETICALLY*) testify that she told Libby about Ms. Plame, refuse to discuss the basis of that knowledge, and leave Special Counsel Fitzgerald with the challenge (per DoJ guidelines) of exhausting all reasonable means to ascertain her source before he re-subpoenas her. Presumably Fitzgerald could battle Plame-fatigue and extend his grand jury, but at a minimum, Ms. Miller has deferred the threat of criminal contempt.

So Judy is out - will Kevin Drum hit his trifecta? Is Judy in the last month of running out the clock on Fitzgerald's grand jury? Time will tell!

ERRATA: The Times should try harder to get the details right:

New details about the case have emerged in recent months. Karl Rove,
the president's senior political strategist, and Mr. Libby, the chief
of staff for Vice President Dick Cheney, both discussed Ms. Wilson with
reporters, according to testimony provided by Matthew Cooper, a Time
magazine reporter, and by others. But neither of the White House
officials is known to have mentioned Ms. Wilson by name or to have
mentioned her covert status at the C.I.A.

Based on his own account, it was Cooper that told Libby about Ms. Plame. Excerpt after the break.

UNCLEAR TO WHOM? J Pod makes an excellent point in response to the Johnston/Jehl assertion that "Much about Ms. Miller's role in the matter remains unclear" - it's not unclear to the Times editors. Note to Bill Keller - whenever you are ready to talk, we are ready to listen. [A Lightbulb! Someday, when Judy's role reaches the level of "All The News That's Fit To Print", Keller can run her story in Times Select!]

UPDATE: We are slipping the John Bolton theory into a mini-update within the main post - since he visited Miller before mid-August, and her lawyers initiated the jail break in late August, we can suspect anything. And since we are speculating about Ms. Miller's motivations, let's add the obvious - Jail's a bitch, even if you are... well, anyway, there is a good reason that the threat (or reality) of jail prompts people to talk - we aren't all Susan MacDougal. Maybe the role of First Amendment champion, the prospective book deals, and the reputational rehabilitation all paled under the flourescent lights and jail food.

And the WaPo has lots - apparently, Libby told Miller a little on July 8, and more on the 12th or 13th. Since Matt Cooper of TIME told Libby about Plame on July 12 (Date Check in the continuation), his role remains important. From the WaPo:

According to a source familiar with Libby's account of his
conversations with Miller in July 2003, the subject of Wilson's wife
came up on two occasions. In the first, on July 8, Miller met with
Libby to interview him about weapons of mass destruction in Iraq, the
source said.

At that time, she asked him why Wilson had been
chosen to investigate questions Cheney had posed about whether Iraq
tried to buy uranium in the African nation of Niger. Libby, the source
familiar with his account said, told her that the White House was
working with the CIA to find out more about Wilson's trip and how he
was selected.

Libby told Miller he heard that Wilson's wife had
something to do with sending him but he did not know who she was or
where she worked, the source said.

Libby had a second
conversation with Miller on July 12 or July 13, the source said, in
which he said he had learned that Wilson's wife had a role in sending
him on the trip and that she worked for the CIA. Libby never knew
Plame's name or that she was a covert operative, the source said.

Libby did not talk to Novak about the case, the source said.

My tip - keep on eye on Murray Waas, who has been on this story like A Rod on a hanging curveball.

My thought - Libby's version seems awfully convenient - by July 8 he had heard that Wilson's wife was involved, but had *not* heard where she worked? Who separated those factoids, which seemed to travel together in the famous INR memo which described Ms. Wilson's role in her husband's selection? An obvious guess - Libby was being smart/slick/disingenuous/manipulative when he told Ms. Miller that he did not know the background of Wilson's wife - he knew, all right, but he wanted to get her poking around, and gossiping all over town. Well, if lying to a reporter is a crime, lock up Washington.

And that said, those factoids were (arguably) separated in Novak's column:

Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger to investigate the Italian report. The CIA says its counter-proliferation officials selected Wilson and asked his wife to contact him.

Maybe Novak was a pawn in a similar manipulation - A senior Administration official told him "Cherchez la femme", and he uncovered her CIA connection on his own. (The second Admin official, reported to be Rove, allegedly provided confirmation with an a comprehensive, in-depth "I heard that, too".)

OK, one more guess - Libby knew Wilson's wife was with the CIA but concealed that when he spoke with Miller on July 8. Once he heard the CIA connection flow back to him from Cooper, he delivered it, courtesy of the TIME tip-laundering service, to Miller. And let's not leave TimRussert out of this - maybe Libby double-sourced his leak before passing it back to Miller. (Here is Liptak of the Times on Russert's intriguing deal with the prosecutor).

Slick for Libby, small bit of a bummer for Karl, and frustrating as all get out (we imagine) for Fitzgerald.

UPDATE 2: Here is a revised version of the Times story, which adds a bit of detail about the Libby-Miller conversations. However, since they don't provide dates, we can't drag Cooper into it:

Ms. Miller met with Mr. Libby on July 8, 2003, and talked with him by telephone later that week, they said.

[Long skip, and...]

According to someone who has been briefed on Mr. Libby's testimony
and who believes that his statements show he did nothing wrong, Ms.
Miller asked Mr. Libby during their conversations in July 2003 whether
he knew Joseph C. Wilson IV, the former ambassador who wrote an Op-Ed
article in The Times on July 6, 2003, criticizing the Bush
administration. Ms. Miller's lawyers declined to discuss the
conversations.

Mr. Libby said that he did not know Mr. Wilson but that he had
heard from the C.I.A. that the former ambassador's wife, an agency
employee, might have had a role in arranging a trip that Mr. Wilson
took to Africa on behalf of the agency to investigate reports of Iraq's efforts to obtain nuclear material. Mr. Wilson's wife is Ms. Wilson.

Mr. Libby did not know her name or her position at the agency and
therefore did not discuss these matters with Ms. Miller, the person who
had been briefed on the matter said.

MR. RUSSERT: You also write in Time magazine
this week, "This was actually my second testimony for the special
prosecutor. In August 2004, I gave limited testimony about my
conversation with [Vice President Dick Cheney's chief of staff] Scooter
Libby. Libby had also given me a special waiver, and I gave a
deposition in the office of my attorney. I have never discussed that
conversation until now. In that testimony, I recorded an on-the-record
conversation with Libby that moved to background. On the record, he
denied that Cheney knew"--of--"or played any role the Wilson trip to
Niger. On background, I asked Libby if he had heard anything about
Wilson's wife sending her husband to Niger. Libby replied, `Yeah, I've
heard that, too,' or words to that effect."

Did you interpret that as a confirmation?

MR. COOPER: I did, yeah.

MR. RUSSERT: Did Mr. Libby say at any time that Joe Wilson's wife worked for the CIA?

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